The Final Decision in R. v. Ellard Reinforces Confidence in our Justice System

Although bullying and mocking have become a normal part of the Canadian high school experience, when this bullying leads to the death of innocent students then the situation has escalated to something beyond the everyday humdrums of life. One such situation that might be familiar to many involves a 14-year old girl who was harassed by a group of six teenagers who repeatedly hit, punched and kicked her (the “initial beating”). She was found with cigarette burns on her skin and forehead where the teenagers stubbed out their cigarettes and attempted to set her hair on fire. Following this initial beating, one of the teenagers continued with this torture holding her head under water with her foot until she stopped struggling. This was the case of Reena Virk, the murder victim in the case of Kelly Marie Edward.

Reena Virk: Background
Reena Virk's name has the potential to raise temperatures and cause anger. The name may give rise to a feeling of shame and embarrassment at the treatment of immigrants in Canada. The name may lead to a vehement discussion on the merits of capital punishment, or invoke a passionate altercation dealing with the eternal debate of vengeance versus justice when determining the adequate punishment.

In 1998, the six girls involved in the initial beating, now known as the “Shoreline Six”, were sentenced. Warren Glowatski, a 17-year old student, was convicted of second-degree murder a year later. But the conviction of the Kelly Marie Ellard and her subsequent three trials are most controversial and, thus, the topic of this post. Convicted of second-degree murder in 2000 in the first of many trials, she appealed and the B.C. Court of Appeal ordered a new trial. This second trial ended with a deadlocked jury. A third trial, in 2005, convicted Ms. Ellard of second-degree murder again, but because of the need for procedural fairness and justice, a fourth trial was granted on appeal in 2008. The B.C. Court of Appeal threw out Ms. Ellard’s conviction on the grounds that the trial judge did not properly instruct the jury. For a detailed analysis of the 2008 trial, see Regina Lee’s well-formulated summary and insights into the case, “R. v. Ellard Seeking Justice”.

R. v. Ellard: The Final Trial
Finally, twelve years and three trials later, the SCC has declared the final verdict granting Reena Virk’s family the closure that they desperately needed. Justice Abella, writing for the majority, overturned the B.C. Court of Appeal's decision in R. v. Ellard, 2009 SCC 27 and restored the second-degree murder conviction against Ms. Ellard.

Ms. Ellard put forward two main arguments in her defence in R v. Ellard 2008 BCCA 341. For her first defence, she submitted that the jury’s verdict was unreasonable, relying on s.686(1)(a)(i) of the Criminal Code R.S.C. 1985, c. C-46. Second, she submitted that special caution had to be 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.” Although the Court of Appeal rejected these two arguments unanimously, Justice Frankel questioned whether the trial judge should have given the jury limiting instructions on their use of prior consistent statements of the witnesses. He concluded that the trial judge erred in his failure to give the jury limiting instructions and ordered a new trial.

When writing her decision, Justice Abella addressed each of the defences submitted by Ms. Ellard. First, she approved the Court of Appeal decision that the verdict was not unreasonable. She maintained that there was "ample evidence on which a properly instructed jury, acting judicially, could reasonably have convicted Ms. Ellard." (Paragraph 17 of her decision gives a list of evidence that supports this conclusion.) She also supported the Court of Appeals unanimous conclusion that limiting instruction on the possibility of collusion was not required.

Justice Abella disputed the final decision relating to the witness’s prior consistent statements. She agreed with the Court of Appeal decision to the extent that the prior statements should not have been admitted. However, she concluded that "these statements were of no consequence and their admission could not in any way be said to have had an impact on the jury’s deliberations. The error was therefore harmless." She allowed the appeal and restored Ellard’s conviction.

Reena Virk put to rest
It has been argued that we are becoming a society that hungers for vengeance and not justice. Ellard has been a controversial case. On the one hand, there are those who believe that Kelly Ellard has served her sentence in the 12-year battle with the justice system in an attempt to overturn her conviction. The focus of this group is on rehabilitation and integration back into society. With such a high profile case, Ms. Ellard's integration back into society will not be smooth or complete. Her suffering and anguish is punishment enough. But there are those who disagree with this notion, and reckon that the extent of her crime deems her unfit to be a part of society. It is believed that she must pay for the crimes she has committed through the zenith of penance as reckoned by the justice system.

In any case, the decision has been rendered and Ms. Ellard has been found wanting. The supporters for the highest penalty may rest easy with the knowledge that justice has been served, while the rest must be content with understanding, belief and confidence in our justice system.